I have done some research in my university and many people do this "mistake". What is the probability that they will get caught?

What are the consequences if you use form 1040 and get a higher return than you would using the correct form (1040NR)? Does it matter only if I plan to become a resident or a citizen? I wouldn't matter if I plan to go back to my country?

I think it is important to clarify this, because the problem is much bigger than we think.

What you say is absolutely correct. Many practitioners make the same mistake and don't direct F1 students to 1040NR. Why? Because they understand the basic law very well but not the international dimension.

The probability of getting caught should not be the issue. The issue is that you should file correctly and claim only what you are entitled to claim.

But somebody can explain me what is the "spirit" of that law? Why an international student that don't make more than $15,000 being a TA or doing research, have to pay more taxes than other people? For example ilegals or people that are actually working. Was this law intended specially for students or they had other people in mind? I think the law about being considered NR is for people that have a lot of money/businesses out of USA and don't want to pay taxes for that. We as students are just victims of this. What can we do to change it? It is definitely an injustice.

Fernando,

There are differences in the tax treatment between residents and non-residents. This is true not only in the US but in a lot of countries.

NR alien students don't pay FICA taxes. They don't pay tax on interest. There are tax treaty benefits available, especially to students/trainees/researchers etc.

Fernando:

TaxSearcher has many valid points. Heed his words!

Further, you are making the assumption that U.S. income tax is FAIR!

Never in my 15 years as a paid tax professional or in 30 years as a tax officer for the U.S. Army have I said that U.S. income tax law is fair.

It IS, however, the LAW. Disobey it at your own risk!!

Just one more question, my friend from south america filled online his 2006 and 2007 return, he used the wrong form (1040) instead of the 1040NR. I told him it was the wrong form. So what can he do? He needs to file form 1040X and send a check for the difference? Is there a deadline to send the 1040X form to correct the problem? Will he have to pay any penalty or interest?

He needs to file Form 1040X, and attach a correctly-prepared Form 1040NR or 1040NR-EZ, with the word 'AMENDED' printed on the top of the first page of the attach Form 1040NR/1040NR-EZ.

If he does this for tax year 2006 prior to 16 April 2007, then no penalties or interest will be due.

What about 2005. Is there any deadline for this one?

There is no deadline if taxes are owed.

If a refund is due to your friend, he must file 2005 by April 15, 2009 to get the refund.

What is the consequence of filing the 1040 instead of 1040NR? How would they find out?

They will probably NOT find out unless they do a comprehensive review of your tax file.

Which they do when you apply for a Green Card.

Which can then be grounds to deny your Green Card application.

Do you want to risk it?